1.5 Determining an application for provider approval in case of death or incapacity of approved provider

[  National Law, Sections 39–40 ]

If an approved provider can no longer fulfil their role due to death or incapacity, a nominated executor, legal personal representative or guardian can be appointed, subject to meeting the requirements, as the approved provider.

The regulatory authority may receive an application from the executor for a provider approval.

If an approved provider becomes incapacitated, their legal personal representative or guardian may apply to the regulatory authority for a provider approval.

A nominated supervisor or a person in day-to-day charge of an education and care service operated by the approved provider must notify the regulatory authority within seven (7) calendar days if the approved provider dies.

The executor of the approved provider’s estate may continue to operate any approved service for the relevant period, if at least one nominated supervisor continues to manage the day-to-day operation of the service. ‘Relevant period’ means 30 calendar days after the death of the approved provider or, if the executor applies for a provider approval, until the regulatory authority determines the application.

In Western Australia, an executor includes a person entitled to a grant of letters of administration to the intestate estate of an approved provider, in addition to a person who has been granted letters of administration or probate or has been named executor in the approved provider’s will.

How does an executor, legal representative or guardian apply?

[  National Law, Sections 39–40 ]

An application must be made in writing. 

An application from an executor must be made within 30 calendar days of the provider’s death. The National Regulations specify information that must be included in an application (see Application checklists – Tables III, IV, V, VI).

Because a provider approval granted to an executor, legal personal representative or guardian only relates to the service formerly operated by the deceased or incapacitated approved provider, the person cannot apply for any additional service approvals, or receive a service approval transferred from another approved provider.

Incomplete applications

If an application does not include all the required information, the regulatory authority may treat the application as invalid. The timeframe for processing an application does not begin until an application is complete and therefore valid.

For more information refer to Incomplete applications in Application for provider approval.

Considering an application

[  National Law, Section 41 ]

The regulatory authority must consider whether the applicant is a fit and proper person to be involved in the provision of an education and care service. See the requirements set out above at Considering an application for fitness and propriety. The provider approval will not be granted to an executor, personal legal representative or guardian; unless they are fit and proper.

Determining an application

[  National Law, Section 41 ]

The regulatory authority may grant the provider approval, grant the approval subject to conditions, or refuse to grant the provider approval. Approval may be granted for a period of not more than six months, and may be extended or further extended for periods of not more than six months at the regulatory authority's discretion.

If granted, it is only in relation to the services that were operated by the approved provider where the applicant is the executor, personal legal representative or guardian.

Appeals

[  National Law, Section 190 ]

A decision to refuse to grant a provider approval is a reviewable decision under the National Law (see Reviews).

After approval has been granted

[  National Law, Sections 20, 30 ]

The regulatory authority must give the approved provider a copy of the provider approval.

A service approval is not suspended during any period that a person is approved to manage or control the education and care service in the event that the approved provider dies or becomes incapacitated.