PER CURIAM
Reconsideration allowed; former opinion modified and adhered to as modified.
PER CURIAM
The state petitions for reconsideration of our decision in State v. Rainbolt, 182 Or. App. 668, 50 P.3d 1228 (2002). We grant reconsideration, modify our opinion, and adhere to our original disposition.
In our decision, we reversed appellant's commitment to the Mental Health Division. We held that the state proved, by clear and convincing evidence, that appellant suffered from a mental disorder. Id. at 672. In addition, we held that "the record lacks clear and convincing evidence that appellant is unwilling or unable to cooperate with and benefit from voluntary treatment * * *." Id. at 674 (emphasis added). As the state now argues, the clear and convincing evidence standard does not apply when the court determines whether an individual is willing and able to cooperate and benefit from voluntary treatment. See State v. Brenhuber, 146 Or. App. 719, 722, 934 P.2d 550 (1997) ("The trial court did not err in applying a preponderance of the evidence standard of proof in the dispositional phase of appellant's mental commitment proceeding."). Appellant agrees that the standard of proof for dispositional phase is a preponderance of the evidence.
In its brief, the state stated that the standard of proof in the dispositional phase was clear and convincing evidence.
We now hold that the state did not prove by a preponderance of the evidence that appellant is unwilling or unable to cooperate with and benefit from voluntary treatment with the help of his family.
Reconsideration allowed; former opinion modified adhered to as modified.