After completing the public comment period, NASAA has just implemented a new “Model Rule” that will require investment advisers to adopt a “Business Continuity and Succession Plan” for the RIA practice. Notably, the rule would apply only for state-registered investment advisers, although the SEC has recently announced it is considering a parallel rule for SEC-based RIA firms as well.
The ultimate requirement of the Model Rule is that advisors would be required to establish a written plan about how they will handle the transition of everything from books and records of the firm, to ongoing servicing of clients (or at least, an orderly wind down), along with an alternate means of communicating with clients, in the event of either a natural disaster, or the unexpected death or disability of the advisor. In other words, how will the RIA fulfill its fiduciary duty and ensure continuity of service for clients, in light of recent natural disaster events like Hurricanes Katrina and Sandy, or the simple fact that with a sole proprietor advisor the clients might not even know the advisor had passed away and that no one was looking after their assets anymore!
Ultimately, the Rule will not actually have the force of law until it is adopted by individual states in the coming months, but nonetheless the pressure is on now for advisors to begin to prepare their written plan, which state examiners will likely want to see the next time the RIA is audited.
Fortunately, many of the continuity provisions can realistically be achieved by adopting cloud-based services that have a robust backup and disaster recovery process of their own. However, the requirement for “[unexpected] succession planning” in particular may be a challenge for many advisory firms, who must ensure continuity for clients (or at least an orderly wind-down) but may not want to sell the practice now. Will NASAA’s new Model Rule spawn an increase in the number of providers who offer an “exit planning” arrangement for advisors who do want to remain in their practice, but need a continuity solution in the event of death or disability?