New AML Law in Guatemala: key issues for notaries and legal professional

The previous legislation already established obligations regarding customer identification, implementation of prevention programmes, record-keeping, identification of third-party beneficiaries, reporting of suspicious transactions and cooperation with the IVE. For this reason, Decree 15-2026 does not create the preventive system from scratch, but rather expands, updates and develops it in greater depth.

Among the main changes are the express incorporation of a risk-based approach, the strengthening of beneficial owner identification, the updating of the treatment of Politically Exposed Persons, the inclusion of virtual asset service providers and the expansion of the economic and professional activities subject to the preventive regime.

One of the most relevant changes is precisely the incorporation of certain lawyers, notaries, accountants and auditors as Obligated Persons when they participate in the operations specifically provided for by the law.

There is also an important change from a criminal law perspective. The previous legislation sanctioned those who carried out the conduct described in the offence of money laundering "knowing, or who by reason of their position, employment, trade or profession were required to know" that the assets came from the commission of a crime. The new legislation modifies the structure of the criminal offence and develops a broader regime of conduct related to the conversion, transfer, acquisition, possession, use, concealment and cover-up of assets of illicit origin, in addition to regulating other offences linked to the functioning of the preventive system.

Finally, there is an important regulatory unification. Decree 15-2026 expressly repeals Decree 67-2001 and Decree 58-2005 and concentrates in a single legal body the prevention and prosecution of money laundering and terrorist financing.

In general terms, I consider that the most important change consists of the expansion and sophistication of the preventive system and the incorporation of new economic and professional actors into the prevention of money laundering.

Latin Counsel: Why does the new law include notaries as Obligated Persons and in which specific cases do they acquire that status?

Cristian Rojas Samayoa: The incorporation of notaries responds to the nature of certain operations in which they intervene professionally. Notaries participate in legal acts that may involve the transfer, administration or transformation of assets, such as real estate transactions, the administration of money or other assets, the organisation of contributions for the incorporation of legal entities, the creation and administration of companies and the transfer of shares or participations.

These operations may be misused to introduce assets of illicit origin into the formal economy, conceal the identity of their true beneficiaries or make it difficult to determine the origin and destination of certain assets.

The express inclusion of notaries constitutes an important difference with respect to Decree 67-2001, which did not specifically list them as Obligated Persons by reason of the exercise of certain notarial functions. However, it is essential to clarify that the new law does not automatically turn every notary into an Obligated Person simply by exercising the notarial profession. The notary acquires that status when authorising public deeds related to the acts or contracts expressly identified by the law.

These operations include those related to real estate and rights over real estate; the administration of money, securities or other client assets; the opening or management of certain accounts; the organisation of contributions for the creation, operation or administration of legal persons or legal structures; the creation and administration of such persons or structures; and the transfer of shares, contributions or other forms of participation.

This delimitation is important because it allows preventive obligations to be concentrated on those professional activities that present greater risks, instead of subjecting all notarial activity to the anti-money laundering regime.

Latin Counsel: What specific obligations must notaries considered Obligated Persons comply with?

Cristian Rojas Samayoa: The new law establishes for notaries and certain university professionals a special regime of obligations, different from and more limited than the general regime applicable to financial entities and other Obligated Persons.

In general terms, notaries covered by the law must register with the Superintendency of Banks, through the Special Verification Intendency; keep a customer identification record with respect to the operations covered by the law; document the date and the professional service provided; retain the corresponding information and documentation for the legally established period; and send a notice to the IVE when they identify inconsistencies between the information provided by the client and the professional service provided, or when they identify an unusual transaction.

This regulation constitutes an important difference with respect to the general regime established by Decree 67-2001, which imposed on Obligated Persons the implementation of programmes, rules, procedures and internal controls; the appointment of officers responsible for monitoring compliance with preventive obligations; customer identification; record-keeping; and the reporting of suspicious or unusual transactions.

That said, Decree 15-2026 chooses to incorporate certain professionals and notaries into the preventive system, but establishes for them a special regime adapted to the nature, volume and complexity of their professional activity.

In my opinion, this differentiation is appropriate because it recognises that the notarial function has characteristics different from those of a financial institution and that preventive obligations must be applied according to criteria of proportionality.

Latin Counsel: How does the new law regulate professional secrecy and confidentiality between legal professionals and their clients?

Cristian Rojas Samayoa: This is one of the most legally sensitive aspects of the new legislation. It should be recalled that Decree 67-2001 established, as a general rule, that Obligated Persons could not invoke confidentiality duties imposed by law or contract in order to refuse to provide information requested by the competent authorities.

For its part, the new law maintains important duties of cooperation and information, but, by expressly incorporating certain legal professionals into the preventive system, it also establishes a specific regulation of professional secrecy.

Article 41 of the new law provides that professionals who provide legal services and have the status of Obligated Persons will not be required to report suspicious transactions or related information when such information has been obtained to verify the legal situation of their client or in the exercise of the right of defence or professional assistance in judicial, administrative, arbitral or mediation matters. This provision constitutes an important safeguard to protect the right of defence and certain areas inherent to the relationship of trust between lawyer and client.

However, outside these cases there are legal obligations to register, retain and communicate certain information. Therefore, I consider that one of the main legal challenges will be to clearly define how far the obligations to cooperate with the authorities extend and where the area protected by professional secrecy begins.

The application of the law must find a reasonable balance between two legitimate interests: on the one hand, the prevention and prosecution of money laundering and, on the other, the protection of essential principles of professional practice, such as the right of defence, confidentiality and trust between the legal professional and their client.

Latin Counsel: What consequences and sanctions may notaries face if they fail to comply with the obligations established in the new law?

Cristian Rojas Samayoa: It is important to distinguish clearly between administrative liability, criminal liability and consequences related to professional practice.

First, there is administrative liability for failure to comply with the preventive obligations established in the law. Decree 67-2001 contemplated a relatively simple sanctions regime: Obligated Persons that failed to comply with their obligations could be sanctioned with a fine of ten thousand to fifty thousand dollars, in addition to being required to comply with the omitted obligation and without prejudice to the corresponding criminal liabilities. With the new Decree 15-2026, a more detailed administrative sanctions regime is developed, mechanisms are established to correct breaches and action plans may be required in cases of repeated non-compliance. In the case of notaries, they may only be administratively sanctioned for failure to comply with the obligations legally applicable to them under the special regime established for university professionals.

Second, criminal liability may exist when the professional’s conduct falls within one of the offences provided for in the law. However, it is essential to clarify that the mere failure to comply with an administrative obligation does not automatically make the notary an author or participant in the offence of money laundering. For criminal liability to exist, the objective and subjective elements of the corresponding criminal offence must be present and the individual responsibility of the professional must be proven in accordance with the rules of due process.

And third, there are consequences related to professional practice. Decree 15-2026 reforms the Notarial Code and expressly includes among the impediments to practise as a notary having been convicted of the offences of money laundering or other assets, terrorism or terrorist financing.

This differentiation is essential to avoid interpretations that equate any formal breach of a preventive obligation with the commission of a crime.

Latin Counsel: How will the entry into force of this regulation affect citizens and companies that carry out operations requiring notarial intervention?

Cristian Rojas Samayoa: The main impact will be an increase in identification and documentation controls in certain operations covered by the law. For some citizens and companies, these controls are not completely new, because financial entities already applied customer identification, record-keeping and transaction analysis obligations under Decree 67-2001.

The main novelty is that certain preventive controls are now expressly extended to operations and professional services that were not previously included in the same way within the system.

Citizens and companies carrying out real estate, corporate or asset-related operations subject to the preventive regime must provide the notary with the information and documentation necessary for the notary to comply with their legal obligations. This will probably involve greater identification procedures, document retention and analysis of the consistency between the information provided by the client and the operation carried out. However, I consider it important to point out that the application of this new law should not generate unnecessary burdens for citizens or turn the notary into an investigator of their clients.

The prevention of money laundering must operate under criteria of risk and proportionality. Citizens and companies carrying out legitimate activities should face greater identification and transparency controls in certain operations, but not unjustified obstacles to accessing notarial services or developing lawful economic activities.

The quality of the regulation and of the provisions issued by the IVE will be decisive in achieving that balance.

Latin Counsel: What do you consider to be the main benefits that Decree 15-2026 can bring to the prevention and prosecution of money laundering in Guatemala?

Cristian Rojas Samayoa: The main benefit consists of updating a system that is more than two decades old and expanding the State’s capacity to confront increasingly complex patrimonial and financial structures. Decree 67-2001 represented an important step forward for Guatemala, since it introduced the offence of money laundering with a broad scope, later recognised its autonomy, established preventive obligations, regulated the reporting of suspicious transactions and created the Special Verification Intendency -IVE-. However, since its approval, the ways used to move, transform, conceal and administer assets have evolved significantly.

The new legislation strengthens the identification of beneficial owners, develops the risk-based approach in greater depth, incorporates new economic and professional activities into the preventive system and expressly regulates phenomena such as virtual asset service providers.

The incorporation of professionals and sectors that intervene in relevant patrimonial operations can also contribute to closing spaces that could be used to introduce illicit assets into the formal economy. However, I consider that no legislation will be effective solely by increasing the number of Obligated Persons, compliance obligations or the amount of information received by the State.

The true effectiveness of the system will depend on the institutional capacity of the IVE, the Public Prosecutor’s Office and the courts to analyse the available information, identify complex criminal structures and direct State resources towards the prosecution of operations truly linked to money laundering and organised crime.

Latin Counsel: From your perspective, what are the main legal and practical challenges posed by the implementation of the new law, especially for notaries and other legal professionals?

Cristian Rojas Samayoa: I consider that one of the main challenges will be to develop clear, proportionate and legally secure regulations for university professionals and, particularly, for notaries.

The law establishes the general obligations, but several fundamental aspects of its practical application will depend on the regulation and on the provisions issued by the IVE. It will be necessary to specify clearly when a professional action falls within the law; what should be understood as a relevant inconsistency between the information provided by the client and the professional service provided; what the criteria are for identifying an unusual transaction; what procedures professionals must use to submit the corresponding notices; and what criteria will be used to supervise and sanction non-compliance with these obligations.

It will also be essential to properly delimit supervisory powers in relation to professional secrecy and the confidentiality of the relationship between the professional and their client.

Another important challenge will be to properly apply the principle of proportionality. A notary practising individually does not have the same operational capacity as a financial institution with specialised departments for compliance, technology and risk analysis. Likewise, the transition from a system that has operated for more than twenty years under Decree 67-2001 to the new model established by Decree 15-2026 will have to be properly managed.

Traditional Obligated Persons will have to adapt their programmes, procedures, risk methodologies and information systems. At the same time, new economic and professional sectors will have to be incorporated into the preventive system.

There is also an important timing challenge. Decree 15-2026 will enter into force three months after its publication, while the law itself grants up to six months from its entry into force for the preparation of the regulation.

This may generate a period in which the law is in force while important aspects of its practical application are still pending regulatory development. Therefore, I consider that implementation must be accompanied by regulatory clarity, training, uniform supervisory criteria and legal certainty regarding the obligations enforceable during the transition period.

The success of the new legislation will depend, to a large extent, on finding an appropriate balance: effectively incorporating notaries and legal professionals into the prevention of money laundering without distorting their professional function, turning them into investigators of their clients, transferring to them responsibilities that belong to criminal prosecution bodies, or unjustifiably weakening professional secrecy and the confidentiality that must exist in the relationship with their clients.