# 3(38) fiduciary

> A 3(38) fiduciary is an investment manager an employer hires to choose and change a retirement plan's investments itself, taking on that responsibility in writing.

Canonical page: https://find.wellspent.co/glossary/3-38-fiduciary/
Also called: 3(38) investment manager, ERISA investment manager

Section 3(38) of ERISA defines an investment manager as a fiduciary with the power to manage, buy or sell plan assets that is a registered investment adviser, a bank or a qualified insurance company, and that has acknowledged in writing that it is a fiduciary to the plan.

The Department of Labor says an employer that prudently appoints such a manager is not liable for the manager's individual investment decisions. The employer still has to choose carefully and monitor the manager periodically, including what it charges.

The difference from a 3(21) fiduciary is advice versus decisions: a 3(21) advisor recommends, a 3(38) manager decides.

## How to check

Ask for the written acknowledgment of fiduciary status in the agreement, and confirm the firm's registration on the SEC's Investment Adviser Public Disclosure site.

## Sources

- [ERISA Section 3(38), 29 U.S.C. 1002(38), via Cornell LII](https://www.law.cornell.edu/uscode/text/29/1002)
- [US Department of Labor, Meeting Your Fiduciary Responsibilities (checked October 31, 2026)](https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/publications/meeting-your-fiduciary-responsibilities)
- [SEC Investment Adviser Public Disclosure](https://adviserinfo.sec.gov/)

## Related terms

- [3(21) fiduciary](https://find.wellspent.co/glossary/3-21-fiduciary.md)
- [Discretionary authority](https://find.wellspent.co/glossary/discretionary-authority.md)
- [Fiduciary](https://find.wellspent.co/glossary/fiduciary.md)
- [Registered investment adviser (RIA)](https://find.wellspent.co/glossary/ria.md)