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Understanding Liability and Contract Issues in Risk Management for Financial Planners

This chapter delves into liability and contract issues as they pertain to risk management for financial planners. It explores what a tort is and the implications of causing harm, whether intentional or unintentional. Key defenses against liability, such as assumption of risk and comparative negligence, are discussed, along with the importance of liability insurance. The chapter also outlines tort-related terms and professional liability standards, their implications for agency relationships, and critical contract concepts like waiver, estoppel, rescission, and contract of adhesion.

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Understanding Liability and Contract Issues in Risk Management for Financial Planners

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  1. Liability and Contract Issues Chapter 5 Risk Management For Financial Planners • What is it? • A tort is the result of one individual or organization causing harm to another • Physical, emotional, or financial • Can be intentional or unintentional

  2. Liability and Contract Issues Chapter 5 Risk Management For Financial Planners • Liability • A court may impose liability to compensate another as a result of a tort • Defenses Against Liability • Assumption of the risk • Contributory negligence • Comparative negligence • Last clear chance

  3. Liability and Contract Issues Chapter 5 Risk Management For Financial Planners • Liability Insurance • Can help ease the financial plan of an adverse judgment • Does not limit liability • Amount of coverage needed depends on individual • Higher assets or income indicate a need for higher levels of coverage

  4. Liability and Contract Issues Chapter 5 Risk Management For Financial Planners • Tort-related terms and definitions • Attractive nuisance • Negligence per se • Absolute liability • Strict liability • Vicarious liability • Collateral source rule

  5. Liability and Contract Issues Chapter 5 Risk Management For Financial Planners • Professional liability • Standard of care requirement far greater for professionals • Agency relationships • Three different types of authority • Express – specifically given • Implied – authority needed to do agent’s job • Apparent (ostensible) – exists when a third party believes an agent truly has authority to act

  6. Liability and Contract Issues Chapter 5 Risk Management For Financial Planners • Contracts • Patrol evidence rule • When parties put their agreement into final, complete, written form, all previous understandings invalid • Doctrine of waiver • Where an individual or organization has voluntarily given up a contractual right • Doctrine of estoppel • Prevents and individual from re-asserting a contractual right that has previously been waived

  7. Liability and Contract Issues Chapter 5 Risk Management For Financial Planners • Contracts (cont’d) • Rescission • An equitable remedy by which the original contract is terminated from its beginning • Reformation • An equitable remedy in which a contract is changed to more accurately express the original intentions of the parties • Contract of adhesion • A contract where one party writes the contract and the other party has only the choice to accept it or reject it

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