The Prudent Investor Act
Encyclopedia
The Uniform Prudent Investor Act (UPIA), which was adopted in 1992 by the American Law Institute
's Third Restatement of the Law of Trusts ("Restatement of Trust 3d"), reflects a "modern portfolio theory
" and "total return
" approach to the exercise of fiduciary investment discretion.
in four major ways:
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...
's Third Restatement of the Law of Trusts ("Restatement of Trust 3d"), reflects a "modern portfolio theory
Modern portfolio theory
Modern portfolio theory is a theory of investment which attempts to maximize portfolio expected return for a given amount of portfolio risk, or equivalently minimize risk for a given level of expected return, by carefully choosing the proportions of various assets...
" and "total return
Total return
The total return on a portfolio of investments takes into account not only the capital appreciation on the portfolio, but also the income received on the portfolio. The income typically consists of interest, dividends, and securities lending fees...
" approach to the exercise of fiduciary investment discretion.
Approach
This approach allows fiduciaries to utilize modern portfolio theory to guide investment decisions and requires risk versus return analysis. Therefore, a fiduciary's performance is measured on the performance of the entire portfolio, rather than individual investments.Adoption
As of May 2004, the Uniform Prudent Investor Act has been adopted in 44 States and the District of Columbia. Other states may have adopted parts of the Act, but not the entire Act. According to the National Conference of Commissioners on Uniform State Laws, the most common portion of the Act excluded by states concerns the delegation of investment decisions to qualified and supervised agents.Comparison to Prudent Man Rule
The Uniform Prudent Investor Act differs from the Prudent Man RulePrudent man rule
The Prudent Man Rule is based on common law stemming from the 1830 Massachusetts court decision, Harvard College v. Amory 9 Pick. 446...
in four major ways:
- A trust account's entire investment portfolio is considered when determining the prudence of an individual investment. Under the Prudent Investor Act standard, a fiduciary would not be held liable for individual investment losses, so long as the investment, at the time of acquisition, is consistent with the overall portfolio objectives of the account.
- DiversificationDiversification (finance)In finance, diversification means reducing risk by investing in a variety of assets. If the asset values do not move up and down in perfect synchrony, a diversified portfolio will have less risk than the weighted average risk of its constituent assets, and often less risk than the least risky of...
is explicitly required as a duty for prudent fiduciary investing. - No category or type of investment is deemed inherently imprudent. Instead, suitability to the trust account's purposes and beneficiaries' needs is considered the determinant. As a result, junior lien loans, investments in limited partnerships, derivatives, futures, and similar investment vehicles, are not per se considered imprudent. However, while the fiduciary is now permitted, even encouraged, to develop greater flexibility in overall portfolio management, speculation and outright risk taking is not sanctioned by the rule either, and they remain subject to criticism and possible liability.
- A fiduciary is permitted to delegate investment management and other functions to third parties.
Not adopted by...
As of 1995 the following states have not adopted the Uniform Prudent Investor Act or Substantially Similar- Delaware,
- Georgia,
- Kentucky, and
- Louisiana.
Suitability
In enacting the Uniform Prudent Investor Act, states should have repealed legal list statutes, which specified permissible investments types. (However, guardianship and conservatorship accounts generally remain limited by specific state law.) In those states which adopted part or all of the Uniform Prudent Investor Act, investments must be chosen based on their suitability for each account's beneficiaries or, as appropriate, the customer. Although specific criteria for determining "suitability" does not exist, it is generally acknowledged, that the following items should be considered as they pertain to account beneficiaries:- financial situation;
- current investment portfolio;
- need for income;
- tax status and bracket;
- investment objective; and
- risk tolerance.